Fair Game: 5 Reasons Why You Can’t

This wasn’t the article I was originally going to turn in, but that’s okay, I didn’t like that article so much anyway. This one is much better. Today’s column was inspired by my own long experience in the arena of comics industry publishing, and further fueled by authorJohn Scalzi’s recent condemnationof some particularly horrible prose publishing contracts. I aim this not only at writers and artists, but to aspiring Indy game developers as well; knowing that gamers are, by and large, a creative lot, and knowing that plenty of us aspire to making, rather than just consuming, the games, movies, books and comics we love, I dispense the following cautionary advice:

When it comes to making the best of a bad contract, you can’t.

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“I know that some publishers (producers, IP developers, etc.) are predatory, but I’m pretty smart, so I can…”

No, you can’t. Smart has nothing to do with it. I’ve seen plenty of intelligent people delude themselves into thinking that they can, without knowledge, experience or assistance, negotiate themselves a viable contract, or still more deluded, a dream contract.

Never confuse intellect and chutzpa for knowing whereof you speak, it’s the professional equivalent of entering a gladiatorial arena unarmed. All the brains and talent in the world won’t make up for a solid knowledge of standard contract provisions and practices. Brains and talent may get you the offer, but they won’t tell you if the offer is worth taking.

“If I work really hard, I can totally do other work on the side to make up the extra cash I need to survive.”

No, you can’t. Working freelance is a tightrope walk on the best of days. You can plan and you can project, but you cannot predict that one, random disaster that throws you and your schedule into the toilet.

Back in the day, (and even as recently as 2008 ) young friends and acquaintances in the comics industry were taking horrendous contracts from the then darling of OEL manga, TokyoPop.

“Woohoo! I just got me a $10k contract! For a graphic novel that will rocket me to fame! After a solid year of 8-12 hour days! I’ll be working below the U.S. Federal Poverty Level! Wait…”

All it takes is a broken bone, an illness, a family member in trouble and suddenly you’re hip-deep in deadlines and commitments with no way to see them all through. Lucky you if you can still manage to complete that one, big bad contract, but there’s no way you’ll be able to find, let alone finish any extra work. And at the end of all that, the fame you get is likely to be of the cautionary tale variety.

“They really seem to like me. Once I’ve proven myself professionally, I can get a much better contract from them next time.”

No, you can’t. Repeat after me: The editor/publisher/IP developer is not my friend. They may be friendly. They may be chummy as all get-out, but I can promise you that no Publisher or IP Developer ever loses sight of the fact that what the two of you have is a business relationship, and it’s their business to get the most they can out of it. An Editor may actually become your friend, but they have to pay the rent as much as you do, and are unlikely to risk their own livelihood on your behalf, for a principle.

At any rate, once you’ve agreed to a lousy contract, that publisher has little incentive to upgrade you next time around. After all, you were willing to accept indentured servitude last time, what makes you so special now? At best, they might throw you a bone, promising much more next time so long as you “improve” in some vaguely quantifiable way. Which, of course, you will somehow never quite manage to do.

“I’m not giving them my best work. After this, I can get a better contract someplace else with the good stuff.”

No, you can’t. First, what makes you think that the mediocre thing you’re presenting now will lead to anyone giving a damn about anything you do later? Second, considering the bone-breaking pace of many a badly contracted job, you can better believe that you won’t be giving them your best work. You’ll be giving them your fastest work, which is not the same thing. Third, many a bad contract does its best to get some variation on Right of First Refusal on your later works. Worded well, RoFR can give you an automatic first read with a publisher. Worded badly, it’s a clause that can tie your work (and subsequently your ability to earn a living) into a thousand legal knots for a very long time.

“Sure, this contract isn’t so good now, but when I’m better known in the industry, I can get my rights back and republish elsewhere.”

No, you can’t. Copyright and the Right of First Publication is tricky in this brave new world. Unless you have a contract that explicitly spells out just where, how (and for how long) a particular entity has the right to use your work, you are likely to find yourself without a leg to stand on. Meaning that you can see your work being used and used again by people who never have to pay you a dime. Moreover, you might not even have the legal right to use/republish that work, your own work, yourself.

Now, I’m not saying that all contracts are bad contracts, far from it. But I am saying that those of us who seek publication, in whatever capacity, are vulnerable. We are vulnerable to a societal paradox that both craves entertainment, yet undervalues those who create it for us. We are vulnerable to our own ignorance and aspirations. We are none of us immune. The young’uns, fresh out of school are easily dazzled by the promise of publication, but the old timers can fall prey too. You need to arm yourself; knowledge really is power. It’s a battlefield out there, so gear up.

Lisa Jonte / Mother, writer, artist, editor. One time (print and web) comics creator, and former editor of the fem-centric GirlAMatic.com; now a secretive and hermit-like prose writer, (and not so secretive nor hermit-like blogger.) A gamer since way back, (no, seriously, waaaay back) her collection of gaming paraphernalia is older than most game store clerks.